Australia-New Zealand Enhanced Co-operation – June 2014 meeting of the Working Party 3 of the OECD Competition Committee


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This presentation by the Australian Competition and Consumer Commission was made during a hearing on Enhanced Enforcement Cooperation held at the 119th meeting of the Working Party 3 of the Competition Committee on 17 June 2014. Find out more at

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Australia-New Zealand Enhanced Co-operation – June 2014 meeting of the Working Party 3 of the OECD Competition Committee

  1. 1. Australia-New Zealand Enhanced Co-operation ACCC-NZCC cross-appointments
  2. 2. Background: a long history of Trans-Tasman Economic Co-operation • Australia and New Zealand close geographic and economic neighbours and many companies operate in and/or trade between both countries • 1983 Australia-New Zealand Closer Economic Relations Trade Agreement (CER Agreement) • 1988 MOU on the Harmonisation of Business Law between Australia and New Zealand • 1990 introduction of s.46A of the Competition and Consumer Act (CCA) and s.36A of the Commerce Act (NZ) – misuse of substantial market power in a trans-Tasman market • Trans-Tasman Proceedings Act 2010 – mutual recognition and enforcement of judgments 17 June 2014 OECD Competition Committee – WP3 2
  3. 3. Single Economic Market Outcomes Framework 2009 • Agreed between the Australian and New Zealand Prime Ministers 20 August 2009 • Competition policy stream proposed three outcomes: – Firms operating in both markets face the same consequences for the same anticompetitive conduct – Competition and consumer law regulators in both jurisdictions are able to share confidential information for enforcement purposes – Cross-appointment of associate members on the ACCC and NZCC 17 June 2014 OECD Competition Committee – WP3 3
  4. 4. Long history of co-operation between the ACCC and the NZCC • Many similarities in the structure of the CCA and the Commerce Act (mergers and agreements that SLC, taking advantage of SMP for an anti-competitive purpose, authorisation on public benefit grounds) • 2006 Cooperation Protocol - merger review • 2007 Cooperation Agreement – general • 2013 Cooperation Agreement – provision of compulsorily acquired information and investigative assistance • Tripartite arrangements with each of Canada, UK and Taiwan 17 June 2014 OECD Competition Committee – WP3 4
  5. 5. ACCC-NZCC Cross-appointments • Cross appointments intended to enhance co-operation and increase alignment in the administration of competition law • Inaugural cross-appointments commenced December 2010 • Mark Berry (Chair of the NZCC) and Jill Walker (Chair of the ACCC Merger Review Committee) cross-appointed as Associate Commissioners • Initial focus on consideration of trans-Tasman mergers • In the first three years we have considered 8 mergers under these arrangements and one currently under consideration • Also considered revised Merger Guidelines and Authorisation Guidelines in New Zealand, revised Authorisation Guidelines and Merger Process Guidelines in Australia 17 June 2014 OECD Competition Committee – WP3 5
  6. 6. How it works in practice • New Zealand has a Formal Merger Clearance regime • Australia has both a Formal and an “Informal” Merger Clearance regime, but only the latter has been used to date • ACCC and NZCC staff have a long history of co-operation in merger reviews - informal discussions and use of waivers • When a merger clearance application is received on both sides of the Tasman, we now routinely consider that merger under the cross-appointments • ACCC Commissioner appointed to the NZCC Division considering the merger in New Zealand with regular meetings • NZCC Commissioner invited to MRC and Commission meetings in Australia for agenda items relating to consideration of the merger • Meetings generally occur by VCU • Cross-appointed Commissioners have full access to confidential information • In parallel, staff teams have regular discussions relating to markets, theories of harm and development of potential remedies 17 June 2014 OECD Competition Committee – WP3 6
  7. 7. Benefits of the Cross Appointments • Deepens cooperation at Commissioner and staff level • Greater alignment of analytical frameworks, theories of harm and effective remedies – general and specific • Pooling of knowledge, experience and expertise • Consistent decisions – but may not be the same decision • Markets may not always be the same (differences in product and geographic substitution) • Competition concerns may arise in one country but not the other, e.g. differences in number of remaining players, or both • Remedies may be required in one country or both 17 June 2014 OECD Competition Committee – WP3 7
  8. 8. Going Forward • Commitment to review after initial 3 years • Review and discussions re future arrangements ongoing • Positive feedback from stakeholders • Look forward to future announcements 17 June 2014 OECD Competition Committee – WP3 8 Thank You